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PRACTICE OF EARLY CHRISTIANS.

[ESSAY II. saints? Do ye not know that the saints shall judge the world? And if the world shall be judged by you, are ye unworthy to judge the smallest matters? Know ye not that we shall judge angels? How much more things that pertain to this life? If, then, ye have judgments of things pertaining to this life, set them to judge who are least esteemed in the church. I speak to your shame. Is it so that there is not a wise man among you? No, not one that shall be able to judge between his brethren? But brother goeth to law with brother, and that before the unbelievers. Now therefore there is utterly a fault among you, because ye go to law one with another. Why do ye not rather take wrong? Why do ye not rather suffer yourselves to be defrauded?"* Upon this, one observation is especially to be remembered: that a great part of its pointedness of reprehension is directed, not so much to litigation, as to litigation before pagans. "Brother goeth to law with brother, and that before the unbelievers." The impropriety of exposing the disagreements of Christians in pagan courts was manifest and great. They who had rejected the dominant religion, for a religion of which one peculiar characteristic was good-will and unanimity, were especially called upon to exhibit in their conduct an illustration of its purer principles. Few things, not grossly vicious, would bring upon Christians and upon Christianity itself so much reproach as a litigiousness which could not or would not find arbitration among themselves. The advice of the apostle appears to have been acted upon: "The primitive church, which was always zealous to reconcile the brethren, and to procure pardon for the offender from the person offended, did ordain, according to the Epistle of St. Paul to the Corinthians, that the saints or Christians should not maintain a process of law one against the other at the bar or tribunals of infidels."t The Christian of the present day is differently circumstanced, because, though he appeals to the law, he does not appeal to pagan judges; and therefore so much of the apostle's censure as was occasioned by the paganism of the courts does not apply to us.

To this indeed there is an exception founded upon analogy. If at the commencement of the Reformation, two of the Reformers had carried a dispute respecting property before Romish courts, they would have come under some portion of that reprobation which was addressed to the Corinthians. Certainly, when persons profess such a love for religious purity and excellence that they publicly withdraw from the general religion of a people, there ought to be so much purity and excellence among them, that it would be needless to have recourse to those from whom they had separated, to adjust their disputes. The Catholic of those days might reasonably have turned upon such reformers, and said, "Is it so that there is not a wise man among you, no, not one that shall be able to judge between his brethren?" And if, indeed, no such wise man was to be found, it might safely be concluded that their reformation was an empty name. For the same reasons, those who, in the present times, think it right to withdraw from other Protestant churches in order to maintain sounder doctrines or purer practice, cast reproach upon their own community if they cannot settle their disputes among themselves. Pretensions to soundness and purity are of little avail if they do not enable those who make them to repose in one another such confidence as this.

* 1 Cor. vi.

Rycaut's Lives of the Popes, fol. 2d ed. 1688. Introd. p. 2.

CHAP. 4.]

ARBITRATION-EVILS OF LITIGATION.

127

Were I a Wesleyan or a Baptist, I should think it discreditable to go to law with one of my own brotherhood.

But though the apostle's prohibition of going to law appears to have been founded upon the paganism of the courts, his language evidently conveys disapprobation, generally, of appeals to the law. He insists upon the propriety of adjusting disputes by arbitration. Christians, he says, ought not to be unworthy to judge the smallest matters; and so emphatically does he insist upon the truth that their religion ought to capacitate them to act as arbitrators, that he intimates that even a small advance in Christian excellence is sufficient for such a purpose as this: -"Set them to judge who are least esteemed in the church." It will perhaps be acknowledged that when Christianity shall possess its proper influence over us, there will be little reason to recur, for adjustment of our disagreements, to fixed rules of law. And though this influence is so far short of universal prevalence, who cannot find among those to whom he may have access some who are capable of deciding rightly and justly? The state of that Christian country must indeed be bad, if it contains not, even in every little district, one that is able to judge between his brethren.

Nevertheless, there are cases in which the Christian may properly appeal to the law. He may have an antagonist who can in no other manner be induced to be just or to act aright. Under some such circumstances Paul himself pursued a similar course: "I appeal unto Cæsar.""Is it lawful for you to scourge a man that is a Roman, and uncondemned?" And when he had been illegally taken into custody, he availed himself of his legal privileges, and made the magistrates "come themselves and fetch him out." There are, besides, in the present condition of jurisprudence, some cases in which the rule of justice depends upon the rule of law, so that a thing is just or not just according as the law determines. In such cases neither party, however well disposed, may be able distinctly to tell what justice requires until the law informs them. Even then, however, there are better means of procedure than by prosecuting suits. The parties may obtain "opinions."

Besides these considerations there are others which powerfully recommend arbitration in preference to law. The evils of litigation, from which arbitration is in a great degree exempt, are great.

Expense is an important item.

A reasonable man desires of course to obtain justice as inexpensively as he can; and the great cost of obtaining it in courts of law is a powerful reason for preferring arbitration.

Legal Injustice. He who desires that justice should be dispensed between him and another should sufficiently bear in mind how much injustice is inflicted by the law. We have seen in some of the preceding chapters that law is often very wide of equity; and he who desires to secure himself from an inequitable decision possesses a powerful motive to prefer arbitration. The technicalities of the law and the artifices of lawyers are almost innumerable. Sometimes, when a party thinks he is on the eve of obtaining a just verdict, he is suddenly disappointed, and his cause is lost by some technical defect,-the omission of a word or the misspelling of a name; matters which in no degree affect the validity of his claims. If the only advantage which arbitration offers to disagreeing parties was exemption from these deplorable evils, it would be a substantial and sufficient argument in its favour. There is no reason to doubt

128

MORALITY OF LEGAL PRACTICE.

[ESSAY II. that justice would generally be administered by a reference to two or three upright and disinterested men. When facts are laid before such persons, they are seldom at a loss to decide what justice requires. Its principles are not so critical or remote as usually to require much labour of research to discover what they dictate. It might be concluded, therefore, even if experience did not confirm it, that an arbitration, if it did not decide absolutely aright, would at least come to as just a decision as can be attained by human means. But experience does confirm the conclusion. It is known that the Society of Friends never permits its members to carry disagreements with one another before courts of law. All, if they continue in the society, must submit to arbitration. And what is the consequence? They find, practically, that arbitration is the best mode; that justice is in fact administered by it, administered more satisfactorily, and with fewer exceptions, than in legal courts. No one pretends to dispute this. Indeed, if it were disputable, it may be presumed that this community would abandon the practice. They adhere to it because it is the most Christian practice and the best.

Inquietude. The expense, the injustice, the delays and vexations which are attendant upon lawsuits, bring altogether a degree of inquietude upon the mind which greatly deducts from the enjoyment of life, and from the capacity to attend with composure to other and perhaps more important concerns. If to this we add the heart-burnings and ill-will which suits frequently occasion, a considerable sum of evil is in this respect presented to us: a sum of evil, be it remembered, from which arbitration is in a great degree exempt.

Upon the whole, arbitration is recommended by such various and powerful arguments, that when it is proposed by one of two contending parties and objected to by the other, there is reason to presume that with that other justice is not the paramount object of desire.

CHAPTER V.

THE MORALITY OF LEGAL PRACTICE.

If it should be asked why, in a book of general morality, the writer selects for observation the practice of a particular profession, the answer is simply this, that the practice of this particular profession peculiarly needs it. It peculiarly needs to be brought into juxtaposition with sound principles of morality. Besides this, an honest comparison of the practice with the principles will afford useful illustration of the requisitions of virtue.

That public opinion pronounces that there is, in the ordinary character of legal practice, much that is not reconcileable with rectitude, can need no proof. The public opinion could scarcely become general unless it were founded upon truth, and that it is general is evinced by the language of all ranks of men; from that of him who writes a treatise of morality, to that of him who familiarly uses a censorious proverb. It may reasonably be concluded that when the professional conduct of a particular set of men is characterized peculiarly with sacrifices of rectitude, there

CHAP. 5.]

COMPLEXITY OF LAW.

129

must be some general and peculiar cause. There appears nothing in the profession, as such, to produce this effect,-nothing in taking a part in the administration of justice which necessarily leads men away from the regard to justice. How then are we to account for the fact as it exists, or where shall we primarily lay the censure? Is it the fault of the men or of the institutions; of the lawyers or of the law? Doubtless the original fault is in the law.

This fault, as it respects our own country, and I suppose every other, is of two kinds; one is necessary, and one accidental. First: Wherever fixed rules of deciding controversies between man and man, or fixed rules of administering punishment to public offenders, are established, there it is inevitable that equity will sometimes be sacrificed to rules. These rules are laws, that is, they must be uniformly, and for the most part literally, applied; and this literal application (as we have already had manifold occasion to show) is sometimes productive of practical injustice. Since then the legal profession employ themselves in enforcing this literal application,-since they habitually exert themselves to do this with little regard to the equity of the result, they cannot fail to deserve and to obtain the character of a profession that sacrifices rectitude. I know not that this is evitable so long as numerous and fixed rules are adopted in the administration of justice.

The second cause of the evil, as it results from the law itself, is in its extreme complication,-in the needless multiplicity of its forms, in the inextricable intricacy of its whole structure. This, which is probably by far the most efficient cause of the want of morality in legal practice, I call gratuitous. It is not necessary to law that it should be so extremely complicated. This the public are beginning more and more to see and to assert. Simplification has indeed been in some small degree effected by recent acts of the legislature; and this is a sufficient evidence that it was needed. But whether needed or not, the temptation which it casts in the way of professional virtue is excessively great. A man takes a cause a morally bad cause we will suppose-to a barrister. The barrister searches his memory or his books for some one or more among the multiplicity of legal technicalities by which success may be obtained for his client. He finds them, urges them in court, shows that the opposing client cannot legally substantiate his claim, and thus inflicts upon him practical injustice. This is primarily the fault of the law. Take away or diminish this encumbering load of technicalities, and you take away, in the same proportion, the opportunity for the profession to sacrifice equity to forms, and by. consequence diminish the immorality of its practice. There can be no efficient reform among lawyers without a reform of the law.

But while thus the original cause of the sacrifice of virtue among legal men is to be sought in legal institutions, it cannot be doubted that they are themselves chargeable with greatly adding to the evils which these institutions occasion. This is just what, in the present state of human virtue, we might expect. Lawyers familiarize to their minds the notion, that whatever is legally right is right; and when they have once habituated themselves to sacrifice the manifest dictates of equity to law, where shall they stop? If a material informality in an instrument is to them a sufficient justification of a sacrifice of these dictates, they will soon sacrifice them because a word has been misspelt by an attorney's clerk. When they have gone thus far, they will go further. The practice of disregard

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DEFENCES OF LEGAL PRACTICE.

[ESSAY IL ing rectitude in courts of justice will become habitual. They will go onward, from insisting upon legal technicalities to an endeavour to pervert the law, then to the giving a false colouring to facts, and then onward and still onward until witnesses are abashed and confounded, until juries are misled by impassioned appeals to their feelings, until deliberate untruths are solemnly averred, until, in a word, all the pitiable and degrading spectacles are exhibited which are now exhibited in legal practice.

But when we say that the original cause of this unhappy system is to be found in the law itself, is it tantamount to a justification of the system? No. If it were, it would be sufficient to justify any departure from rectititude; it would be sufficient to justify any crime, to be able to show that the perpetrator possessed strong temptation. Strong temptation is undoubtedly placed before the legal practitioner. This should abate our censure, but it should not cause us to be silent.

We affirm that a lawyer cannot morally enforce the application of legal rules without regard to the claims of equity in the particular case.

If it has been seen in the preceding chapters that morality is paramount to law; if it has been seen that there are many instances in which private persons are morally obliged to forego their legal pretensions, then it is equally clear that a lawyer is obliged to hold morality as paramount to law in his own practice. If one man may not urge an unjust legal pretension, another may not assist him in urging it. No man, it may be hoped, will say that it is the lawyer's only business to apply the law. Men cannot so cheaply exempt themselves from the obligations of morality Yet here the question is really suspended; for if the business of the profession does not justify a disregard of morality, it is not capable of justification. Suspended! It is lamentable that such a question can exist. For to what does the alternative lead us? Is a man when he undertakes a client's business at liberty to advance his interests by every method, good or bad, which the law will not punish? If he is, there is an end of morality. If he is not, something must limit and restrict him; and that something is the moral law.

Of every custom, however indefensible, some advocates offer themselves; and some accordingly have attempted to justify the practice of the bar. Of that particular item in the practice which consists in uttering untruths in order to serve a client, Dr. Paley has been the defender. "There are falsehoods," says he, "which are not criminal; as where no one is deceived, which is the case with an advocate in asserting the justice, or his belief of the justice, of his client's cause." It is plain that in support of this position one argument, and only .one, can be urged, and that one has been selected: "No confidence is destroyed, because none was reposed; no promise to speak the truth is violated, because none was given or understood to be given." The defence is not very creditable, even if it were valid; it defends men from the imputation of falsehood, because their falsehoods are so habitual that no one gives them credit!

But the defence is not valid. Of this the reader may satisfy himself by considering why, if no one ever believes what advocates say, they continue to speak. They would not, year after year, persist in uttering untruths in our courts, without attaining an object, and knowing that they

* I speak of the bar because that branch of the profession offers the most convenient illus tration of the subject. The reasonings will generally apply to other branches † Mor. and Pol. Phil. b. 3, p. 1, c. 15.